Arlington, Va.—The Ninth U.S. Circuit Court of Appeals today declined to reconsider its April 2009 decision calling into question the practice of some School Tuition Organizations (STOs) of giving scholarships to only religious schools. The Court of Appeals April decision said that a trial would be necessary to determine if such practices by organizations that participate in Arizona’s individual tax credit program unconstitutionally limit—rather than expand—parental choice.

Eight judges on the Ninth Circuit joined a lengthy dissent written by Circuit Judge Diarmuid O’Scannlain calling today’s decision not to rehear the case “regrettable.” The dissent explains in great detail how the Ninth Circuit’s April decision “strays from established Supreme Court precedent . . . [and] jeopardizes the educational opportunities of thousands of children who enjoy the benefits of [Arizona’s Scholarship Tax Credit Program] and related programs across the nation.”

“The Institute for Justice will ask the U.S. Supreme Court to review this case, reverse the Ninth Circuit’s April decision, and uphold parental choice,” declared Tim Keller, executive director of the Institute for Justice Arizona Chapter, which is defending the program on behalf of parents and the Arizona School Choice Trust, one of the state’s leading STOs. “As Judge O’Scannlain’s dissent makes clear, the court’s ruling conflicts with established precedent and jeopardizes educational opportunity in Arizona and across the nation, making this a compelling case for U.S. Supreme Court review.”

The plaintiffs in this almost-10-year-old lawsuit, represented by the ACLU of Arizona, claim that the program impermissibly advances religion in violation of the Establishment Clause of the First Amendment to the U.S. Constitution. Under the U.S. Supreme Court’s 2002 ruling in Zelman v. Simmons-Harris, which upheld a school choice program in Cleveland, school choice programs that are based on true private choice pass constitutional muster. Arizona’s program is therefore constitutional because it is governed entirely by private decisions and private actors with no governmental control.

As Judge O’Scannlain’s dissent explains, “This case is more notable . . . for what it does not involve: state action advancing religion. The government does not direct any aid to any religious school. Nor does the government encourage, promote, or otherwise incentivize private actors to direct aid to religious schools.” He further wrote that, “[T]he state’s involvement stops with authorizing the creation of STOs and making tax credits available. After that, the government takes its hands off the wheel. Anyone can create an STO. Anyone can contribute to any STO and receive identical tax benefits. Anyone can apply for any scholarship offered by any STO.”

“The Ninth Circuit’s order declining to review the case is indeed ‘regrettable,’” Keller said. “However, the dissenting judges make a powerful case for U.S. Supreme Court review and we are confident that if the Supreme Court does accept this case that Arizona’s Tax Credit Program will be upheld as entirely consistent with the Establishment Clause.”